CLA-2 RR:CR:GC 962648K
Port Director
U.S. Customs Service
1000 Second Ave.
Seattle, WA 98104
RE: Protest 3001-98-100282; Vacuum Sealed Stainless Steel Drinkware
Dear Port Director:
The following is our response to protest 3001-98-100282, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of vacuum sealed stainless steel drinkware.
FACTS:
The consumption entries covering the imported merchandise were liquidated on April 24, 1998, under the provision for vacuum flasks and other vacuum vessels, complete with cases, having a capacity not exceeding 1 liter, in subheading 9617.00.10, (HTSUS). A timely protest under 19 U.S.C. 1514 was received on July 23, 1998. The protestant requested reliquidation of the entries under the provision for other household articles of stainless steel, in subheading 7323.93.0080, HTSUS.
As stated in the protestant’s letter dated October 13, 1998, the protest is limited to Exhibit # 2, a Tumbler Drinkware. The sample stainless steel tumbler is approximately 6 inches high with a 3-inch circular opening at the top, and a circular bottom approximately 2 1/4 inches containing a plastic insert. The tumbler contains a patterned plastic outer covering approximately 2 inches in width that apparently is used to be able to hold the tumbler when filled with a hot liquid. The tumbler consists of a double-walled receptacle (the inner), with a vacuum created between the walls. A plastic screw-on lid contains an area with small holes which permits one to drink liquids from the tumbler without removing the lid.
The protestant states that the tumbler is non-sealing because the lid contains small holes and provides no insulating qualities. Although the tumbler is vacuum sealed, the protestant maintains it does not maintain heat for a reasonable time. The protestant has submitted laboratory tests which shows that the tumbler containing a liquid at 212? (F) loses temperature after an hour to 158? (F) and after two hours, at 135? (F). The laboratory tests compare the tumbler with other tumblers which are sealed and maintain more constant temperatures for longer periods. Customs Laboratory Report No. 8-1999-20051-001 dated February 2, 1999, concludes that the tumbler loses about 13? (F) per hour.
ISSUE:
Whether the described tumbler is classified as a vacuum flask or vessel in heading 9617, HTSUS.
LAW AND ANALYSIS:
The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be
determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1.
Heading 9617.00, HTSUS, provides for vacuum flasks and other vacuum vessels, complete with cases; parts thereof other than glass inners. Subheading 9617.00.10, provides for
vessels having a capacity not exceeding 1 liter.
Heading 7323, HTSUS, provides for table, kitchen or household articles and parts thereof, of iron or steel. Subheading 7323.93.0080, HTSUS, provides for other household articles of stainless steel.
The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN’s for heading 9617 state, in part, as follows;
(1) Vacuum flasks and other similar vacuum vessels, provided they are complete with the cases. This group includes vacuum jars, jugs, carafes, etc., designed to keep liquids, food or other products at fairly constant temperature, for reasonable periods of time. These articles consist of a double walled receptacle (the inner), generally of glass, with a vacuum created between the walls, and a protective outer casing of metal, plastics or other material, sometimes covered with paper, leather, leathercloth, etc. The space between the vacuum container and the outer casing may be packed with insulating material (glass fibre, cork or felt). In the case of vacuum flasks the lid can often be used as a cup.
The EN’s for heading 7323, states, in part, as follows;
This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels, restaurants, boarding houses, hospitals, canteens, barracks, etc. (Emphasis in original.)
They may be fitted with lids, handles or other parts of accessories of other materials provided that they retain the character of iron or steel articles.
Further, the EN’s for heading 7323, exclusion (m), excludes vacuum flasks and other vacuum vessels of heading 9617 (see Note 1(m), Section XV, HTSUS).
The tumbler contains a vacuum sealed vessel consisting of a stainless steel double-walled receptacle with a plastic casting around the vessel and, based on the protestant’s own laboratory report, maintains heat. It is obvious that by design, the article is intended to keep liquids at fairly constant temperatures for reasonable periods of time. The tumbler is specifically provided for in heading 9617, HTSUS and is classified in this heading by virtue of GRI 1, HTSUS.
HOLDING:
The stainless steel tumbler as described above is classified under the provision for vacuum flasks and other vacuum vessels, complete with cases, having a capacity not exceeding 1 liter, in subheading 9617.00.10, HTSUS.
You are directed to deny the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision, attached to Customs Form 19, should be provided by your office to the protestant no later than 60 days from the date of this decision. Any reliquidations of entries in accordance with this decision must be accomplished prior thereto.
Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division